10th Circuit rules Kansas 'ag-gag' law unconstitutional

  • Majority rejected argument that the law forbids conduct, not speech
  • Dissenter says 'lies' to enter agricultural facility not protected speech

NEW YORK (Reuters) - A divided federal appeals court on Thursday affirmed that parts of Kansas' "ag-gag" law - among the first laws in the nation restricting undercover animal rights activists - violates the First Amendment, upholding a permanent prohibition against the state enforcing the provisions.

In a 2-1 decision, a panel of the 10th U.S. Circuit Court of Appeals rejected Kansas' appeal of two Kansas City federal court rulings that say sections of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act runs afoul of free speech protections. The law is aimed at deterring undercover efforts by activists like co-plaintiff the Animal Legal Defense Fund (ALDF) to document animal abuse at livestock operations.

Representatives for Kansas Governor Laura Kelly and the state's attorney general, the appellants in the case, did not immediately respond to requests for comment.

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ALDF executive director Stephen Wells said in a statement that the decision made clear that Kansas cannot legislate speech and was "a victory for animals throughout the state who suffer in secret."

ALDF and others sued in 2018 over the 1990 law, challenging its constitutionality on freedom of speech grounds.

Kansas' ag-gag law, the first nationwide according to a 2017 report by the Center for Constitutional Rights, makes it a crime to use false statements to enter an animal facility closed to the public with the intent to damage the business and without the owner's consent, and to remain concealed to take photographs and recordings. ALDF's undercover investigators typically seek jobs at the facilities without revealing their true purpose.

Kansas' ag-gag law is one of about a dozen such state laws, which have given rise to numerous legal challenges.

Last week, the 8th U.S. Circuit Court of Appeals reinstated a First Amendment challenge against Arkansas' ag-gag law, and ruled that a key part of Iowa's ag-gag law passes constitutional muster.

U.S. District Judge Kathryn Vratil in January and April 2020, after ruling that the plaintiffs had standing to challenge three subsections of the law, concluded that the state had failed to tailor the law in a way that restricts but also protects speech.

Kansas on appeal argued that the law forbids conduct, not speech, and that it only prohibits unprotected, false speech that is made with the intent to inflict harm.

In Thursday's ruling, U.S. Circuit Judge Carolyn McHugh wrote that the subsections at the center of the appeal do regulate speech, rather than merely conduct, because they control what individuals can say in order to gain access to livestock operations.

The judge also wrote that the type of false speech employed by undercover activists at livestock operations is "too attenuated" to qualify as unprotected speech as recognized by the U.S. Supreme Court, namely speech that causes legally cognizable harm.

"Dissemination of true information cannot be a legally cognizable harm," McHugh wrote.

She was joined by Senior U.S. Circuit Judge Michael Murphy.

In a dissent, U.S. Circuit Judge Harris Hartz said he would have held the act is not unconstitutional.

"Lies uttered to obtain consent to enter the premises of an agricultural facility are not protected speech," he wrote.

The case is Animal Legal Defense Fund, et al v. Kelly, et al, 10th U.S. Circuit Court of Appeals, No. 20-3082.

For Animal Legal Defense Fund, et al: Allen Chen of the University of Denver Sturm College of Law

For Kelly, et al: Dwight Carswell with the Office of the Attorney General for the State of Kansas

Read more:

8th Circuit revives challenge to Arkansas ag-gag law

8th Circuit offers mixed win on Iowa 'ag-gag' law

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